Judge Who Ruled Out Matching Fingerprints Changes His Mind

By ANDY NEWMAN

Published: March 14, 2002

Two months after issuing the first ruling that fingerprint identification did not meet federal standards for scientific evidence, a judge reversed himself yesterday and said he would let an F.B.I. expert testify that a suspect's prints match those found at a crime scene.

The judge, Louis H. Pollak of Federal District Court in Philadelphia, found that the F.B.I.'s procedures, though unproven in the strictest scientific sense, were similar to Scotland Yard procedures accepted by British courts. He also said the Supreme Court's 1993 standard of what constitutes allowable expert testimony was more flexible than he had first thought.

Judge Pollak's initial decision in January delighted defense lawyers and alarmed law enforcement officials, who had counted on fingerprint evidence as nearly unassailable. In a capital murder case in which prosecutors said the prints of two defendants, Carlos Ivan Llera Plaza and Wilfredo Martinez Acosta, were found in a car, the judge ruled that because fingerprint analysis had not been subjected to rigorous testing, an expert could testify to the similarities between prints but could not conclusively tell a jury that one print matched another.

But the United States attorney's office in Philadelphia asked for a rehearing and, in three days of testimony, managed to sway the judge.

''I have concluded,'' Judge Pollak wrote, ''that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight.

''In short, I have changed my mind.''

The United States attorney in Philadelphia, Patrick Meehan, applauded the ruling, saying, ''We prevailed on the underlying theory that this is in fact reliable testimony that the judge in his role as the gatekeeper of evidence can have confidence in.''

Mr. Meehan noted, however, that the judge's ruling addressed only F.B.I. print examiners. Most fingerprint experts work for state and local police agencies, which have differing standards.

Rob Epstein, the federal public defender whose challenge of fingerprinting in an earlier case formed the basis of the present challenge, said he was puzzled by the judge's about-face.

The judge wrote in his opinion that while the proficiency tests that the F.B.I. submitted as evidence of its examiners' accuracy were so easy as to be of little value, no F.B.I. print identification had ever been proved wrong.

Mr. Epstein said: ''It's not the burden of the defense to show that the error rate is unacceptably high. It's the government's to show that the rate is acceptably low.''

Lawyers for the defendants cannot appeal Judge Pollak's ruling until the murder trial is complete. One of the lawyers, Felipe Restrepo, said that if his clients were convicted he might appeal.

In any case, Mr. Epstein said, the ruling was unlikely to slow the steadily rising tide of challenges to fingerprint testimony nationwide.